Lead Opinion
for the Court.
¶ 1. Lutricia Magee, individually and on behalf of the wrongful-death beneficiaries of Lonnie C. Magee, Jr., deceased, and all others who are entitled to recover under the wrongful-death statute, filed suit against the Covington County School District, alleging negligence and res ipsa lo-quitur. The Covington County School District filed its Motion for Summary Judgment, which the Covington County Circuit Court granted in part and denied in part. Finding that the circuit court erred by failing to grant the District’s motion for summary judgment in, loto, we reverse the circuit court’s order and render judgment here in favor of the Coving-ton County School District.
FACTS AND PROCEEDINGS IN THE TRIAL COURT
¶ 2. On August 8, 2007, Lonnie C. Ma-gee, Jr. (Lonnie), age seventeen, was a student at Mount Olive Attendance Center and a member of the school’s football team. During the course of football prac
¶ 3. On February 25, 2008, Lutrieia Ma-gee (Magee), individually and on behalf of the wrongful-death beneficiaries of Lonnie C. Magee, Jr., deceased, and all others who are entitled to recover under the wrongful-death statute, filed her First Amended Complaint
DISCUSSION
¶ 4. The District couches the issue before the Court in these terms:
Whether the claims of the [plaintiff] against the [District] are based upon the District’s exercise or performance or the failure to exercise or perform a discretionary function or duty, whether or not the discretion be abused, thereby entitling the District to immunity from the [p]laintiff s claims pursuant to [the Mississippi Tort Claims Act],
On the other hand, Magee couches the issue(s) before the Court as follows:
Whether the claims of the [plaintiff] against the [District] are based upon the District’s exercise of ordinary care in reliance upon, or the execution or performance of or the failure to exercise or perform a statute, ordinance, or regulation?
Whether [the District] has a statutory duty to provide a safe environment for its students and to minimize risks to its students and whether this duty applies to decisions and/or conduct related to allowing football practice to be conducted in dangerously hot and humid temperatures?
We thus combine and rephrase these issues into one issue for the sake of today’s discussion.
WHETHER THE TRIAL COURT ERRED IN FAILING TO GRANT, IN TOTO, THE DISTRICT’S MOTION FOR SUMMARY JUDGMENT.
¶ 5. This Court’s well-established standard of review for a trial court’s grant
¶ 6. The District argues that its alleged acts or omissions were not ministerial, but discretionary in nature, thereby entitling the District to immunity (exemption from liability) pursuant to Mississippi Code Section ll-46-9(l)(d). Magee, however, contends that the District failed to perform its statutory duty to provide a safe environment for its students; therefore, Mississippi Code Section ll-A6-9(l)(b) is triggered, and it is an issue of fact as to whether the District exercised ordinary care. See Miss.Code Ann. §§ ll^L6-9(l)(d), (b) (Rev. 2002).
¶ 7. The District constitutes a “governmental entity” and a “political subdivision” pursuant to the Mississippi Tort Claims Act (MTCA). Miss.Code Ann. § 11-46-1 (Rev.2002). The MTCA provides the exclusive remedy against a governmental entity or its employee for the act or omission which gave rise to the suit. Miss.Code Ann. § 11-46-7(1) (Rev.2002). The intent of the MTCA is to provide immunity from suit to the state and its political subdivisions; however, the MTCA waives immunity for claims for money damages arising out of the torts of government entities and employees while acting within the course and scope of their employment to the extent set forth in the MTCA. Miss.Code Ann. §§ 11-46-3(1), 11-46-5(1) (Rev.2002). This waiver of immunity is subject to exemptions. Miss.Code Ann. § 11-46-9 (Rev.2002). Mississippi Code Annotated Section 11-46-9 states, in pertinent part:
(1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:
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(b) Arising out of any act or omission of an employee of a governmental entity exercising ordinary care in reliance upon, or in the execution or performance of, or in the failure to execute or perform, a statute, ordinance or regulation, whether or not the statute, ordinance or regulation be valid;
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(d) Based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused;
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Mis? Code Ann. §§ ll-46-9(l)(b), (d) (Rev. 2002).
¶ 8. The District submits that its alleged conduct constitutes discretionary behavior, whereas Magee argues that a school district’s statutory duty to provide a safe environment has been positively im
¶ 9. Magee argues that the District failed to exercise ordinary care in reliance upon, or in the execution or performance of, or in the failure to execute or perform, a statute, ordinance or regulation. See Miss.Code Ann. § ll-46-9(l)(b) (Rev. 2002). Magee relies on Mississippi Code Section 37-9-69 as well as this Court’s mandate that school personnel are required to use ordinary care in administering public schools, and “[sjchools have the responsibility to use ordinary care to provide a safe school environment.” L.W.,
It shall be the duty of each superintendent, principal and teacher in the public schools of this state to enforce in the schools the courses of study prescribed by law or by the state board of education, to comply with the law in distribution and use of free textbooks, and to observe and enforce the statutes, rules and regulations prescribed for the operation of schools. Such superintendents, principals and teachers shall hold the pupils to strict account for disorderly condtict at school, on the way to and from school, on the playgrounds, and during recess.
Miss.Code Ann. § 37-9-69 (Rev.2007) (emphasis added).
¶ 10. This Court has applied this statute only in a limited context, mainly in cases concerning the disorderly conduct of students, or intentional acts on the part of individuals, and has never applied it to the timing or oversight of football practice. In reference to Section 37-9-69, this Court stated that “[tjhis statute mandates that school personnel maintain appropriate control and discipline of students while the children are in their care.” L.W.,
¶ 11. Before moving on, we note that Magee asserts that the District has admitted the applicability of Section 37-9-69 in response to her (Magee’s) requests for admission propounded during discovery. We disagree. In Request For Admission No. 12, Magee requested the District to admit that it had “a statutory duty
Responding to Request No. 17, Defendant admits only that from Miss.Code Ann. § 37-9-69, the Courts of this state have fashioned a ministerial duty to maintain a safe environment for the students that has been applied by the Courts in a limited context....
(Emphasis in original). We have stated that Mississippi Rule of Civil Procedure 36 “is to be enforced according to its terms.” Educ. Placement Sers. v. Wilson,
¶ 12. Magee also argues that Mississippi Code Section 37-9-14 gives rise to a statutory duty based on the facts of this case. This argument is simply without merit. Section 37-9-14 sets forth the responsibilities and powers of the superintendent, and in no way does this statute imply any duties pertaining to the oversight of athletic practices. See Miss.Code Ann. § 37-9-14 (Rev.2007).
¶ 13. The District asserts, based on both Prince v. Louisville Municipal School District,
We must balance the serious negative repercussions which could result for all extra-curricular school activities if the discretionary decisions of coaches are not exempt from liability pursuant to Miss.Code Ann. § 11 — 46—9(l)(d) with the need for providing a well-rounded education. There is nothing in the record to imply that Coach McCray’s actions as a football coach on August 21, 1995, violated any statute, ordinance, or regulation.
Harris,
¶ 14. Further, Magee contends that, even if the acts or omissions of the District are discretionary, they still do not invoke the protection of social, economic, or political policy. This Court adopted the public-policy-function test and stated “only those functions which by nature are policy decisions, whether made at the operational or planning level, are protected.” Jones v. Miss. Dep’t of Transp.,
Who knew the football players of the 1995 Jefferson County High School football team better than Coach McCray? He knew what players would complain only when hurt and what players would complain at a drop of a hat simply to be able to take a break from football practice on a hot August day. Coaches have to know what motivates their players and what does not. Coaches know that in order to discipline football players, each one is a different human being— one player may be disciplined by a mere stern look from the coach, while a military-style drill sergeant chewing out will not faze another player. Coaches will know their players well enough to know who may holler “wolf’ and who will not. When Victor Harris complained of feeling weak and needing a water break, Coach McCray told Harris he was “faking it.” Unfortunately, he was not. Harris's injuries and resulting damages are not to be treated flippantly. However, we cannot fast-forward past the facts of this case and the applicable law just to arbitrarily impose liability in an attempt to right a perceived wrong.
While the facts of Victor Harris’s case are no doubt tragic, we must realize the consequences of our decision today were we to find Coach McCray and the school district liable on the facts of this case. High school football coaches around the state would lose them ability to control their football teams. Discipline of a football team would become non-existent. If a coach refused a player’s request to have a water break — to see a trainer — to not have to run any more wind-sprints — to not have to do any more one-on-one blocking/tackling drills, because of that player’s complaint of “feeling weak” or “not feeling good” or simply “not feeling like it,” that coach would be very much aware of the fact that he/she would be running the risk of being successfully sued along with other school officials and the school district, should that player later suffer physi-eal/medical problems related to the coach’s failure to cow to the player’s every whim and wish. On the other hand, if the coach, in fear of a successful lawsuit, should cow to the player’s every
whim, wish and demand, then the coach would lose the respect of the players, and discipline and morale would be lost.
Harris,
¶ 15. Although this Court is once again faced with a devastating and tragic situation because of the untimely death of a high-school student, we are constrained to find that the applicable provisions of the MTCA “operated to shield [the District and its coaches and employees] from any liability.” Harris,
CONCLUSION
¶ 16. For the reasons stated, the Cov-ington County Circuit Court’s denial, in part, of the District’s motion for summary judgment is reversed, and judgment is rendered here, in toto, in favor of the Covington County School District, thus granting summary judgment in full.
¶ 17. REVERSED AND RENDERED.
Notes
. The original complaint is not part of the record before this Court.
. The trial court's grant of sumriiary judgment as to the res ipsa loquitur claim is not before this Court.
. In its arguments before the trial court, the District, through counsel, stated that "[Ma-gee's counsel]'s asked us to admit in a vacuum admission or denial concerning general duties governed by Mississippi law. We don’t deny that there is a duty to take care of these students, Your Honor. That would be foolish for us to sit here and suggest otherwise. What we’re saying is, these specific allegations that they are alleged [sic ] invoke discretionary acts as stated in die Harris and in the Prince case. The [supreme] court has spoken on this."
. As we stated in Planis, "[w]hile admittedly involving application of ‘pre-Pruett ’ common law concerning whether the act involved was a discretionary or ministerial function, our decision in Prince is enlightening.” Harris,
Dissenting Opinion
Dissenting:
¶ 18. I agree with the majority and this Court’s precedent that, as it stands, coordinating and supervising high school football practice are discretionary acts within the meaning of Mississippi Code Section 11—46—9(1)(d). Prince v. Louisville Mun. Sell. Dist.,
¶ 19. It is well-settled that Mississippi Code Section 11—46—9(1)(d) does not bestow immunity for all discretionary governmental acts. See, e.g., Jones v. Miss. Dep’t of Transp.,
¶ 20. In this case, in order to decide whether qualified immunity pursuant to Section 11-46-9 applies to the school district and its coaches, it must be determined whether the discretionary acts or omissions which led to the tragic death of Lonnie Magee were grounded in social, economic, or political policy. Jones,
¶ 22. This Court agreed with the plaintiff, noting that it “must distinguish between real policy decisions implicating governmental functions and simple acts of negligence which injure innocent citizens.” Id. (quoting Gale v. Thomas,
¶ 23. Here, it cannot be determined whether the defendant’s discretionary acts were rooted in policy, because the record does not contain sufficient information. Given that this case is before us by way of interlocutory appeal from a partial denial of summary judgment, the plaintiff has not had sufficient opportunity to discover exactly what acts or omissions, if any, caused or contributed to the sudden demise of Lonnie Magee. The record is incomplete, as neither the plaintiff nor this Court knows what the coaches did or did not do on the day of Lonnie’s death.
¶ 24. This Court cannot rule out that some discretionary conduct by some athletic coaches may be comparable to that of the bus driver in Stewart: neither rooted in social, economic, nor political policy nor contemplated by the Legislature when it enacted the MTCA. Given this Court’s precedent and the limited record before us, I am unable to determine whether the relevant acts or omissions of the school district and the coaches of Mount Olive Attendance Center were rooted in social, economic, or political policy. I would hold that the trial judge did not err in denying the school district’s summary judgment motion, and I would remand the case for further proceedings.
GRAVES, P.J., Joins this Opinion.
Dissenting Opinion
Dissenting:
¶ 25. I respectfully dissent. Because I believe the trial court properly denied summary judgment at this stage of the litigation, I would affirm the trial court.
I.
¶ 26. Mississippi Code Section 11-46-9 provides that a state governmental entity and its employees shall not be liable for any claim while acting within the course and scope of their employment and duties. Miss.Code Ann. § 11-46-9(1) (Rev.2002). The statute provides for immunity, in part, for a claim “[ajrising out of any act or omission of an employee of a governmental entity exercising ordinary care in reliance upon, or in the execution or performance of, or in the failure to execute or perform, a statute, ordinance or regulation.” Miss. Code Ann. § 11—46—9(1)(b) (Rev.2002). As the majority correctly holds, a governmental entity and its employees have immunity, provided that ordinary care is used when performing a duty under a statute, ordinance, or regulation. Harris v. McCray,
¶ 27. This Court has distinguished what constitutes ministerial and discretionary acts. A ministerial act is a duty that “has been £>ositively imposed by law and its performance required at a time and in a manner or under conditions which are specifically designated, the duty to perform under the conditions specified not being dependent upon the officer’s judgment or discretion.” Dancy v. East Miss. State Hosp.,
If 28. In order to determine whether the conduct at issue is discretionary in nature, this Court has imparted a two-prong test. The two-prong test to determine whether the governmental conduct is discretionary is: (1) does the conduct involve an element of choice or judgment on the part of the entity or employee; and if so, (2) does the choice or judgment involve social, economic, or political policy. Dancy,
II.
¶ 29. Magee claims, in part, that the District had a duty to provide a safe environment for its students pursuant to Mississippi Code Sections 37-9-69 and 11-46-9(l)(b). The majority opined that “[s]ection 37-9-14 sets forth the responsibilities and powers of the superintendent, and in no way does this statute infer any duties pertaining to the oversight of athletic practices.”
¶ 30. Section 37-9-69 provides:
It shall be the duty of each superintendent, principal and teacher in the public schools of this state to enforce in the schools the courses of study prescribed by law or by the state board of education, to comply with the law in distribution and use of free textbooks, and to observe and enforce the statutes, rules and, regulations prescribed for the operation of schools. Such superintendents, principals and teachers shall hold the pupils to strict account for disorderly conduct at school, on the way to and from school, on the playgrounds, and during recess.
Miss.Code Ann. § 37-9-69 (Rev.2007) (emphasis added). While the statute does not explicitly define the duties of a superintendent, principal, or teacher to oversee athletic practices, the statute does provide that they must “enforce the statutes, rules and regulations prescribed for the operation of schools.”' Miss.Code Ann. § 37-9-69.
¶ 31. The Court of Appeals in Dotts v. Pat Harrison Waterway District,
¶ 32. In Dotts, the trial court also considered PHWD’s actions in regard to the operation of its facility. Dotts,
The park manager of Dunn’s Falls at the time of Holly’s accident was Raford Williams. He was the only employee on duty that day. Although the trial court found that the PHWD was utilizing a discretionary function, the court held that Williams did not have any discretion regarding the operation of Dunn’s Falls. Because of PIIWD’s policy, Williams’ actions ivere ministerial. Therefore, any evidence of Williams’knowledge that the back buoy line was missing or knowledge that the swimming area’s configuration had changed would be violations of the policies of PHWD that would trigger liability under the MTCA.
Id. at 327 (emphasis added).
¶ 33. The Court of Appeals also upheld the trial judge’s finding of fact concerning conflicting evidence. Id. at 327. In other words, the Court of Appeals upheld the trial court’s determination that while PHWD had discretion in adopting its policy concerning rules for public swimming areas, its employee had no discretion, and the employee’s conduct in implementing the policy was ministerial in nature. Id. Further, any knowledge the employee had that any activity or circumstances was contrary to the policy would have been a violation of the policy that would have exposed PHWD to liability pursuant to the MTCA. Id. In Dotts, the employee overseeing the swimming facility died prior to taking a deposition, therefore, the trial court determined that the issue of whether the employee had actual knowledge of the swimming conditions could not be determined and PHWD was not liable in that case. Id. As noted, above, the Court of Appeals upheld the trial court’s decision. Id.
¶ 34. Here, the discovery conducted was incomplete. Further, discovery is required in this case to allow the parties time to complete depositions at a minimum. This case is distinguishable from Harris and Prince v. Louisville Municipal School District,
¶ 35. Further, the parties have not had an opportunity to determine, for instance, whether the Covington County School District has a county operational policy similar to the written, operational policy in place in Dotts and whether it has operational procedures for athletics. Provided the District had a written, operational policy in place, the superintendent, principal, and teachers, including coaches, had a duty
¶ 36. Unlike Dotts, however, Mississippi has a statute for school personnel, Section 37-9-69, which states in part that “[i]t shall be the duty of each superintendent, principal and teacher in the public schools of this state ... to observe and enforce the statutes, rules and regulations prescribed for the operation of schools. ” Miss.Code Ann. § 37-9-69 (Rev.2007). The trial court recognized that total summary judgment in favor of the District was premature given the early stage of the case. Upholding the trial court’s decision allows the parties an opportunity to discover whether the District had any county operational policy in place, what the policy stated in regard to athletics, and whether the procedures were followed. Further, it provides an opportunity to depose appropriate personnel.
¶ 37. This case has implications of both ministerial and discretionary functions. See Dotts,
III.
¶ 38. For the above reasons, I dissent with the majority’s opinion today.
. Both Harris and Prince involved injury to a student during a school athletics program.